The Grand Ole Opry House was damaged during May 2010 flooding. The stage was stripped down during flood cleanup. / Dipti Vaidya / File / The Tennessean

Written by

Duane Marsteller and Amanda Gambill

The Tennessean

The Gibson Guitar plant was damaged during May 2010 flooding. / File

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The waters have long since receded, but the legal wake of the 2010 Nashville flood may be headed upstream to Cincinnati.

A federal judge in Nashville dismissed three flood-damage lawsuits against the federal government Thursday, saying it has legal immunity. But attorneys for the plaintiffs, including Gibson Guitar and Nissan, say an appeal to a higher court in the Ohio city is likely.

In dismissing the lawsuits, U.S. District Judge Todd Campbell said a 1928 flood-control law shielded the government from flood-damage claims.

Campbell’s ruling was a blow to Grand Ole Opry owner Ryman Hospitality Properties, Gibson, Nissan North America and several other companies that sued the government last year over damages from the May 2010 storm.

About 17 inches of rain fell throughout Middle Tennessee during a two-day period, causing the Cumberland River to breach its banks. The flood left 26 people dead, including 11 in Nashville, where damage estimates topped $2 billion.

The suits contend the U.S. Army Corps of Engineers and the National Weather Service acted negligently and inadequately communicated with each other before and during the storm. The corps violated procedures and waited too long to release water from Old Hickory dam, while the weather service issued flawed river-stage forecasts, the suits contended.

Cost in billions

The plaintiffs said they collectively suffered more than $1.1 billion in property damage that could have been prevented or reduced had the agencies acted properly. Among the damaged properties: The Grand Ole Opry, the nearby hotel and convention center and Gibson’s guitar factory.

They argued the 1928 law’s immunity defense didn’t apply because the dam was built for navigation and power generation, not flood control. But Campbell disagreed in his ruling.

“Plaintiffs claim that defendant negligently responded or failed to respond to a ‘forecasted historic storm event,’ but nothing about that characterization (as opposed to calling it a ‘flood’) changes the fact that the character of the waters at issue herein was ‘flood waters’ and the alleged actions and inactions were flood control efforts,” he wrote.

Bob Echols, a Nashville attorney for the plaintiffs, said Campbell’s opinion didn’t surprise him but doesn’t absolve the federal agencies.

“The law is what it is, and that’s how the judge read the law, and without the immunities, they (the defendants) would have been found liable,” he said. “We knew it was a steep hill, in terms of the plaintiffs, to establish legal liability even though you may be negligent.”

Nashville attorney Phillip North and his wife, Dale, also sued over damage to their home in Madison.

Appeal possible

He declined to comment on Campbell’s ruling, but another plaintiff attorney strongly hinted that it will be taken to the 6th U.S. Circuit Court of Appeals in Cincinnati.

“Both sides of this case have always known there were issues of law here that would be finally resolved in the Sixth Circuit court,” Nashville attorney Bob Patterson said. “The district court has been helpful in providing a quick opinion.”

Campbell’s ruling came just two weeks after he heard oral arguments on the government’s request to dismiss the cases.

“We are gratified by (Thursday’s) ruling,” U.S. Attorney Jerry Martin said. “Collectively these cases sought roughly $1 billion in damages against the United States, and on behalf of the taxpayers we are pleased with the result.”

He declined to comment on Patterson’s assertion that the case will head to appeals court.

Echols said he didn’t know if his clients would appeal but “they’ve lost so much that I wouldn’t be surprised if they did.”

A legal expert said any appeal, which the plaintiffs will have to file by early May, will face long odds.

“I think they’ll probably lose,” said Paul Figley, a law professor at American University in Washington, D.C., and a former top U.S. Department of Justice official. “It seems to be a pretty cut-and-dry case.”

Contact Duane Marsteller at 615-259-8241 or dmarstelle@tennessean.com. Follow him on Twitter @DuaneMarsteller. Amanda Gambill is with Siegenthaler News Service-MTSU.